Sweeney v Magnay
[2011] QCATA 104
•29 April 2011
| CITATION: | Sweeney v Magnay [2011] QCATA 104 |
| PARTIES: | Luke Antony Sweeney trading as Luke Sweeney Constructions (Applicant/Appellant) |
| v | |
| Sarah Magnay (Respondent) |
| APPLICATION NUMBER: | APL097-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 29 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Grant a stay in respect of the sum of $20,197.58 being part of the amount ordered to be paid by the applicant to the respondent under an order of 25 February 2011; 2. Refuse the application for a stay in respect of the balance of the sum referred to in that order, namely $106,672.28. |
| CATCHWORDS: | APPEAL – STAY – BUILDING MATTER – where a QCAT Member ordered that the applicant pay the respondent $126,869.86 – where a stay of the operation of that decision is sought pending the outcome of the application for leave to appeal – where applicant asserts that the respondent was wrongfully allowed to amend its defence and bring in new evidence and incorrect findings of fact were made – whether a stay should be granted Domestic Building Contracts Act 2000 Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd (2008) 2 Qd R 453 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is a building case in which the builder is seeking leave to appeal an order made by a QCAT Member after a lengthy hearing that he pay the home owner $126,869.86.
The builder, Mr Sweeney, has also sought an order staying the operation of the Member’s decision pending the determination of the application for leave to appeal, or appeal. By order of this Appeal Tribunal, that application is to be heard and determined on the basis of written submissions, which the parties have now exchanged.
An application for a stay, in these circumstances, can be made under s 145(2) of the QCAT Act which provides that the Tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided. (The preceding sub-section provides that an appeal does not, otherwise, affect the operation of the original decision or prevent the taking of action to implement it.)
Both parties are legally represented. Surprisingly, however, neither submission refers to or relies upon s 145(2). The submissions for the applicant builder refer to s 22(3), a provision enabling the Tribunal to make an order staying the operation of a reviewable decision. The decision here is one made in QCAT’s jurisdiction under the Queensland Building Services Authority Act 1991 and the Domestic Building Contracts Act 2000. It is not a decision of the kind referred to in s 22, and it falls within QCAT’s Civil Disputes jurisdiction.
The respondent’s submissions address this error, but then go on to suggest that the only jurisdiction granted to the QCAT Appeal Tribunal to order a stay arises under s 152 of the QCAT Act. That section appears, however, in a division of the Act dealing with appeals from QCAT to the Court of Appeal and primarily addresses the circumstance in which that Court might be asked to make a stay.
In any event, the decision against which Mr Sweeney wishes to appeal was handed down by an experienced legal Member of the Tribunal on 25 February 2011 after a very long hearing involving four days in August 2009, another five in October 2009 and a further two days in December of that year. It is not clear why it took more than a year for the decision to be delivered but that delay itself does not appear to be a ground upon which the applicant relies for a stay (although the length of the hearing, and things which occurred during it, are raised).
The factors relevant to a stay were considered by the Queensland Court of Appeal in Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd (2008) 2 Qd R 453 in which Keane JA (as his Honour then was) said: ‘… it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment’.
There is no reason not to adopt the same principle here, when a party seeks to appeal a decision explained in a detailed 56 page judgment from a QCAT Member experienced in the building jurisdiction.
Keane JA went on to suggest that the factors to be considered in deciding applications for stays included a preliminary assessment of the appellant’s case (if that is possible); whether or not the appeal might be rendered ‘nugatory’ by a refusal of the stay; and, whether or not the applicant would be irremediably prejudiced if the stay was not granted and the appeal ultimately succeeded.
[10] Although the submissions from the respondent address the wrong provision of the QCAT Act they do, essentially, address these issues.
[11] The applicant’s submissions assert, first, that the respondent was wrongfully allowed to amend its defence and bring in new evidence very late in the case in a way which caused confusion about the issues – something which, it is said, is reflected in the time the learned Member took to write his decision.
[12] There is, as the parties appear to agree, a wrong figure in the decision, which allowed $145,737.49 to the applicant for the costs of rectification of defects against the builder when, as the respondent’s submissions concede, the correct figure should have been $125,539.91.
[13] The applicant’s submissions otherwise address critical findings made by the learned Member about the location of a slab, and issues concerning drainage. Findings of fact will not usually be disturbed on appeal unless they can clearly be seen to be based on an error.[1] The applicant’s submissions assert, but are not persuasive that, the findings were against the weight of the evidence. It is plain there was evidence available to support the learned Member’s conclusions about these matters.
[1] Fox v Percy (2003) 197 ALR 201 at 207, 208.
[14] As to the possibility that the appeal would be rendered pointless for the appellant if no stay is granted, and he ultimately succeeds, there is nothing in the material to show any reasonable basis for fear that the respondent would be not be able to repay the judgment sum, nor any evidence that the builder himself will suffer irreparable harm. He complains, in an affidavit, that a licence necessary for him to continue to do building work may be at risk, and that he could possibly be forced into bankruptcy, but there is no evidence about his financial circumstances to support these bare assertions.
[15] His complaint about the manner in which the proceedings were conducted focuses upon two occasions in which the respondent was allowed to amend her pleadings, and then adduce further evidence. Those decisions were not, themselves, appealed but, even if that circumstance is ignored the applicant still carries the burden of persuading the Appeal Tribunal that changes to a party’s case, occurring during a lengthy hearing which stretched over several months (and now addressed at length in detailed reasons from the presiding Member) nevertheless gave rise to some want of procedural fairness, and consequential injustice, to the builder.
[16] The applicant’s submissions on this point are not persuasive. The only thing he points to as suggesting that there were serious adverse consequences because of the amendments is the incorrect figure, mentioned earlier which, it is asserted, is evidence that ‘confusion’ infected the whole case. While the error is a troubling matter, it is not apparent how the way it came about could be the product of the late amendments.
[17] In summary the applicant’s case for a stay is unpersuasive, except in one respect. As the respondent properly concedes, an apparent mathematical error would have the affect of reducing the sum the applicant should pay the respondent by an amount of over $20,000.
[18] At first blush an error of this magnitude rings alarm bells in the sense it is obviously significant, and its size implies some want of care that might infect other parts of the judgment.
[19] A closer reading of the decision suggests, however, that it is a simple oversight. The learned Member set out the correct sum earlier in the decision (at para 244) and the basis upon which it should be awarded (at 255). Once that is appreciated the error should more fairly be seen, and categorised, as a mere slip or mistake which ought to be remedied, but does not carry a strong inference that the whole judgment is wrong.
[20] In that circumstance the acknowledged error warrants an order that the application for a stay be allowed, but only to the extent of $20,197.58, which is the difference between the amounts that, according to both parties’ submissions, the learned Member should have ordered and the sum he actually awarded against the builder.
[21] It will be ordered that the application for a stay pending the determination of the application for leave to appeal be allowed, in part, but only by allowing a stay in respect of the sum of $20,197.58, of the total amount of $125,539.91 which the learned Member ordered to be paid. The effect is that the applicant must still pay the balance of the amount ordered in the decision, namely $106,672.28 and no stay attaches to that part of the original decision.
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